“Beware the Ides of March” was what the prophet warned Caesar according to Shakespeare. It didn’t go well for him, but the latest batch of ADA and FHA decisions are something of a mixed bag. Before getting to that news though I want to make sure everyone who wants one has a copy of my white paper on HUD’s new guidance on service and assistance animals. If you are interested just email me. You will be added as a subscriber to this blog and I’ll email a copy of the paper. But now on to the news.
Standing and intent to return – the Strojnik factor
It is elementary that an ADA plaintiff must establish some likelihood of a future injury in order to have standing. Strojnik v. 1530 Main LP, 2020 WL 981031 (N.D. Tex. Feb. 28, 2020) is one of a small number of Texas cases addressing this issue. Judge Brown’s analysis is worth reading because it looks at the 5th Circuit authorities and explains why the “deterrent effect” doctrine is not sufficient to give a plaintiff standing in the absence of any intent to return. The “deterrent effect” doctrine is, in fact, a mis-named and mis-used substitute for intent to return. A plaintiff who never intended to go back cannot have been deterred from going back by some condition at the defendants’ place of business. Sloppy language and slopping thinking in the Nnth Circuit are the origin and support of the ADA litigation industry.
Strojnik suffered a similar fate in Strojnik v. IA Lodging Napa First LLC, 2020 WL 906722, at *3 (N.D. Cal. Feb. 25, 2020) although the Court found his pleadings to be more comprehensively inadequate. The opinion ends on the heartening note that the Court will have more to say about Strojnik’s litigation tactics in an upcoming order on the defendant’s motion to declare Strojnik a vexatious litigant.
Strojnik v. 1530 Main LP also adopts a helpful pleading standard for a showing of present injury. Instead of pleading specific ADA violations Strojnik simply attached photographs of allegedly non-compliant features of the hotel to his Complaint. Without an explanation of how each pictured condition affected his disability the Court found the Complaint was inadequate.
Schutza v. Union City Investments LLC, 2020 WL 905605 (S.D. Cal. Feb. 25, 2020) is a must-read opinion for anyone faced with generic ADA pleadings. The complaint, like most of those from serial filers, alleged the existence of access barriers without saying just what was wrong. That was not enough for the Court:
But were the dining tables too high? Were they too low? Where were the paths of travel? How were they inaccessible? Plaintiff leaves everyone guessing. As Plaintiff’s allegations are only “naked assertions devoid of further factual enhancement, and the Court need not accept “legal conclusions” as true, the Court finds Plaintiff’s allegations for this element of an ADA claim insufficient.
The Court grants leave to amend, and the nature of the problems is such that they can be cured by amendment if the problems really exist, but forcing the plaintiff to do the work of identifying ADA barriers to access with some specificity will at least test the legitimacy of the claims.
ADA Title II and sovereign immunity
As a starting note, readers interested in this issue should read William Goren’s recent blog on the 11th Circuit’s decision concerning the State of Florida. Bailey v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2020 WL 874042 (E.D. La. Feb. 21, 2020) looks at the issue in the context of a state funded stadium. The discussion is worth reading, but the plaintiff’s decision to concede sovereign immunity for damage claims makes the holding somewhat unimportant. For more about this case see the discussion below on the merits of the ADA claims in the same lawsuit.
The cost of default
In California small businesses continue to find that the cost of default in a typical serial plaintiff lawsuit is cheaper than any amount of defense. In Acosta v. Martinez et al, 2020 WL 1026890 (E.D. Cal. Mar. 3, 2020) the defendant was ordered fix ADA violations and pay $4000 in statutory damages plus $1,823 dollars in attorneys’ fees. The usual warning applies of course – if the cost of repair is excessive a defense based on the readily achievable standard doesn’t make sense.
The defendant didn’t do quite so well in Arroyo v. Melendez, 2020 WL 869211 (C.D. Cal. Feb. 21, 2020), but no statutory damages were awarded because the court declined to exercise jurisdiction over Unruh Act claims, so total monetary award was only $3245.75.
The defendant lost even more in Johnson v. Johnson, 2020 WL 901517 (N.D. Cal. Feb. 25, 2020), with an award of $4492 in fees and costs. A default strategy needs to take into account the individual court to guess at what the cost will be.
You can absolutely moot an ADA claim by shutting down the public accommodation and selling the property on which it operated according to Johnson v. Baird Lands, Inc., 2020 WL 978629 (N.D. Cal. Feb. 28, 2020). That does not, however, eliminate a damage claim under California’s Unruh Act. Johnson recovered $4000 in statutory damages, but nothing more.
All the way moot
I have categorized Harty v. Nyack Motor Hotel Inc., 2020 WL 1140783 (S.D.N.Y. Mar. 9, 2020) as a mootness case because that is the most obvious basis for the court’s holding. The defendant simply took down their allegedly inaccessible website, an act sufficiently dramatic to moot any claim about it. The rest of the opinion catalogues the pro se plaintiff’s other failures, which were many. It is worth reading because some of the failures are common in complaints from more sophisticated plaintiffs.
Pleadings, franchises, and claims based on admitted ignorance.
In Chapman v. CKE Restaurants Holdings, Inc. 2020 WL 1230130 (E.D.N.C. Mar. 12, 2020) the plaintiff managed all the usual standing hurdles only to be tripped up by the fact that ignorance is not a reasonable basis for a lawsuit. The plaintiff sued the purported owner of a large number of franchised restaurants. The court agreed that she had alleged both injury and intent to return, but found that she had not connected the defendant to her injuries because she did not plead the necessary ownership and control. Equally important, her class allegations rested on the existence of a policy that failed to make the restaurants accessible or, in the alternative, the lack of an effective ADA policy. The court was unwilling to accept mutually inconsistent alternatives as a sufficient basis for a lawsuit since the plaintiff was clearly only speculating. The case was dismissed without prejudice and the plaintiff can in theory plead a claim that can withstand a motion to dismiss; whether she will be able in fact to do so remains to be seen.
Underline those hyperlinks if you want your arbitration clause to stick
Group homes, zoning and the Fair Housing Act
Stadium line of sight litigation
And more on alterations
City sidewalks as services
Is an auto repair shop a public accommodation?
ADA Website lawsuits – long arm jurisdiction
** See my earlier blogs, Another ADA case heads to the Supreme Court – City of Trinidad v Hamer, and Eternal liability under ADA Title – It’s what you don’t do that matters, as well as the mention in Quick Hits – He’s making a list and checking it twice, which will provide a link to William Goren’s discussion of the topic.